As explained in an alerter post on Free Movement Blog, as of 16 July 2012, the Immigration (European Economic Area) Regulations 2006 will be amended through the Immigration (European Economic Area) (Amendment) Regulations 2012. The regulations are being amended to
- Give effect to judgments of the Court of Justice of the European Union (CJEU) concerning the circumstances in which people can be admitted to, and reside in, the UK; and
- Address issues concerning the transposition of Directive 2004/38/EC (the Citizens’ Directive) and the practical application of the 2006 Regulations.
The judgment of the CJEU in Chen and Others (Free movement of persons)  C-200/02 has been given effect to by providing rights of entry and residence for the primary carer of an EEA national who is under the age of 18 and resides in the UK as a self-sufficient person, where the denial of such a right would prevent the EEA national child from exercising his or her own right of residence.
Moreover, the judgments of the CJEU in Ibrahim (European citizenship)  C-310/08 and Teixeira (European citizenship)  C-480/08 are taken into account by conferring rights of entry and residence on the
(1) Child of an EEA national where the child is in education in the UK and had entered and begun to reside here at a time when their EEA national parent was residing as a worker; and
(2) Primary carer of that child of an EEA national where requiring the primary carer to leave the UK would prevent the child of an EEA national from continuing to be educated in the UK.
The 2006 Regulations have been amended to give rights of entry and residence to the dependants of a primary carer where a refusal to confer such a right would prevent their primary carer from exercising the right of residence.
Other changes relating to creating rights of entry and residence in the 2006 Regulations include
- Regulation 12 allowing a person to obtain an EEA family permit in order to facilitate the exercise of his or her right to enter
- A new regulation 18A which enables those exercising these rights of residence to obtain a document evidencing that fact
- A new regulation 21A which modifies the manner in which decisions – relating to the exclusion and removal of, or the denial of documentation to, persons seeking to rely on rights of residence – are to be taken in relation to people relying on the new rights of entry and residence.
In order to reflect the documents which can be issued in recognition of these new rights, regulation 2 (general interpretation), regulation 4 (“worker”, “self-employed person”, “self-sufficient person” and “student”), regulation 22 (person claiming right of admission), regulation 23 (person refused admission), regulation 24 (person subject to removal), regulation 26 (appeal rights) and schedule 2 (effect of other legislation) paragraphs 2 (persons not subject to restriction on the period for which they may remain), 3 (carriers’ liability under the 1999 Act) and 4 (appeals under the 2002 Act and previous immigration Acts) of the 2006 Regulations have been amended in light of the new rights of entry and residence created by the 2012 Regulations.
Paragraph 6 (periods of residence under the 2000 Regulations) of Schedule 4 (transitional arrangements) to the 2006 Regulations will implement the principles identified by the CJEU in the cases of Lassal (European citizenship)  C-162/09, Dias (European citizenship)  C-325/09 and Ziolkowski (Freedom of movement for persons)  C-424/10. This is to ensure that activity or residence in the UK which was not pursuant to the 2006 Regulations will nevertheless count for the purpose of calculating periods of time under those Regulations (which, significantly, includes the period of five years’ residence after which a permanent right of residence will be acquired) in cases where such activity or residence in the UK at the material time was
(1) In accordance with the Immigration (European Economic Area) Regulations 2000, the Immigration (European Economic Area) Order 1994, or the directives concerning free movement pre-dating the 1994 Order or
(2) Undertaken in the UK by the national of a country which has since acceded to the EU if such person at the relevant time had leave to enter or remain and would have been carrying out that activity or residing in the UK pursuant to the 2006 Regulations had they been in force and applied to the person in question at the relevant time.
A new regulation 20A enabling the SSHD to cancel a person’s right to reside in the UK on the grounds of public policy, public security or public health – in circumstances where it is impossible to make a decision to deny the person a document under regulation 20(1) or to remove the person pursuant to regulation 19(3)(b) – will be inserted into the 2006 Regulations.
Regulations 13 (initial right of residence), 14 (extended right of residence) and 15 (permanent right of residence) of the 2006 Regulations have been amended to include that where a decision is (i) taken to remove a person pursuant to 19(3)(b); or (ii) made under regulation 20(1) to deny a person a document evidencing a right of residence, that decision deprives the person in question of the right to reside. (Similar provision is made in respect of the new regulation 20A (cancellation of right of residence)). However, a new regulation 15B (continuation of right of residence) – stipulating the relevant right to reside continues while an appeal against the decision which operates to deprive the person of the right to reside could be brought or is pending – has been inserted into the 2006 Regulations.
Moreover, the provisions of the 2006 Regulations governing the circumstances in which an appeal can be brought have been amended to
(1) Correct the definitions delineating the circumstances in which an asylum or human rights issue raised by a person will permit them to appeal from within the UK in circumstances in which their right of appeal would ordinarily only be exercisable from overseas; and
(2) Clarify the documents which must be produced in order to be able to appeal; and
(3) Prevent a person from bringing an in-country appeal against a decision to deny them a document where that decision has been taken whilst the person in question is outside the UK.
The definition of “student” in regulation 4(1)(d) of the 2006 Regulations has been amended in order to remove the reference to a register of Education and Training Providers. The change is aimed at allowing people to meet this aspect of the definition if they are attending a public or private establishment which is financed from public funds or is otherwise recognised by the SSHD as an accredited establishment providing a course or training within the law or administrative practice of the part of the UK where the establishment is located.
Regulation 10 (family member who has retained the right of residence) of the 2006 Regulations has been amended to clarify that, in certain circumstances, a family member of a person who has a permanent right of residence can retain a right of residence.
The interpretative provisions in regulation 2(1) of the 2006 Regulations have been amended to clarify that a person will not be regarded as
- The spouse, civil partner or durable partner of another person for the purpose of the 2006 Regulations where a spouse, civil partner or durable partner of either person is already residing in the UK; and
- An EEA national where the person is also a UK national.
The amendment of the definition of an EEA national, which will come into force on 16 October 2012, reflects the CJEU’s judgment in the case of McCarthy (European Citizenship)  C- 434/09 and transitional provisions addressing the position of persons who have acted in reliance on the previous definition have been included in the amendments.
Free Movement Blog explained these developments as:
[T]here is no sign of any attempt to tackle Zambrano yet … The main change is the very belated (eight years is a new record, surely) incorporation of Chen  EUECJ C-200/02 into the EEA regs. However, the bad news is that a new category of residence called ‘derivative residence’ has been created with its very own new ‘derivative residence card’. This type of residence will never qualify the person for permanent residence. This is of highly questionable legality and challenges are likely.